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Identifying a Masked Armed Robber Based on Facebook Photo in Massachusetts

ATMA recent Massachusetts robbery case arose when the defendant was convicted of armed burglary, masked armed robbery, and armed assault in a dwelling. The events giving rise to the case occurred one night when the victims, a couple, woke up to find that there were three masked men standing by their bed, screaming and pointing a gun toward them. A man with a crowbar asked where the money and drugs were. The victims showed the three men their valuables, which included $2,000 in cash, a guitar, and a gaming system. The female victim told the men where her debit card was and gave the man with the crowbar her PIN.

At trial, the defendants argued the evidence was not enough to prove their identity beyond a reasonable doubt. The Commonwealth didn’t have direct eyewitness identification testimony, but it submitted evidence about what the robber with the crowbar was wearing, including a sweatshirt with a Champion logo, and that the skin of his that did show was dark. The surveillance video showed a man with dark skin and a sweatshirt with a Champion logo using the victim’s debit card and PIN to withdraw cash from an ATM near the victim’s house after the robbery. The sweatshirt the defendant wanted to bring after his arrest was also a black Champion sweatshirt.

The female victim found a photograph of a dark-skinned masked man on the defendant’s Facebook page and said that the mask and skin color were almost identical to the robber carrying a crowbar. The defendant was related to the male victim and was familiar with the home.

During opening statements, the prosecutor told the jury that it would hear that the male victim had told the police he recognized the voice of one of the robbers as being the defendant. During trial, however, the male victim said only that he possibly recognized the robber’s voice. He was prohibited from making an in-court voice identification of the defendant. The judge told the jury it couldn’t decide the case based on a possibility.

Later, the defendant claimed that the prosecution’s inaccurate claim during the opening statement that there would be a voice identification prejudiced the jury. The appellate court disagreed, noting that a prosecutor can say anything during an opening statement that he believes in good faith he will prove. Unless there is a showing of bad faith or prejudice, the fact that the prosecutor isn’t able to present that evidence is not a basis to reverse the jury’s decision. In this case, the defendant didn’t claim bad faith, and even the defendant’s attorney expected a voice identification.

The female victim had seen a photo on the defendant’s Facebook page while investigating on her own. The photograph showed a masked, dark-skinned man. The defendant argued it was an error to admit the Facebook photo into evidence because the Commonwealth had failed to show that it was a photo of him or even that he posted it. At trial, the female victim said the photo appeared to be a fair depiction of the person she saw robbing her. The evidence tended to show the defendant’s participation in the crime.

The defendant argued the Facebook photo wasn’t properly authenticated by a qualified witness that it was what it purported to be or that circumstances existed that implied it was what the prosecution claimed. The Commonwealth didn’t show by a preponderance of the evidence that it was a photograph of the defendant that he’d posted on his own Facebook page. The appellate court agreed it was prejudicial, but it didn’t see a substantial risk of a miscarriage of justice.

The judgment was affirmed.

If you are charged with a theft crime in Massachusetts, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.

More Blog Posts:

Assault and Battery Causing Serious Injury in Massachusetts, Boston Criminal Defense Lawyer Blog, published January 14, 2015

Receiving Stolen Property in Massachusetts, Boston Criminal Defense Lawyer Blog, published December 15, 2014